Fundamental principle of protection
|Appeal Judgement - 05.05.2009||
MRKŠIĆ & ŠLJIVANČANIN
70. Additionally, the Appeals Chamber recalls the finding in the Krnojelac Appeal Judgement that “[t]he Geneva Conventions are considered to be the expression of customary international law”. In particular, it is well established that Common Article 3 of the Geneva Conventions, which is applicable to both international and non-international armed conflicts, is part of customary international law and therefore binds all parties to a conflict. Common Article 3 enshrines the prohibition against any violence against the life and person of those taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause. The Appeals Chamber considers that Common Article 3 of the Geneva Conventions reflects the same spirit of the duty to protect members of armed forces who have laid down their arms and are detained as the specific protections afforded to prisoners of war in Geneva Convention III as a whole, particularly in its Article 13, which provides that:
Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. […]
Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.
71. The fundamental principle enshrined in Geneva Convention III, which is non-derogable, that prisoners of war must be treated humanely and protected from physical and mental harm, applies from the time they fall into the power of the enemy until their final release and repatriation. It thus entails the obligation of each agent in charge of the protection or custody of the prisoners of war to ensure that their transfer to another agent will not diminish the protection the prisoners are entitled to. This obligation is so well established that it is even reflected in Article 46 of Geneva Convention III, which applies to the transfer of prisoners of war to another location by the Detaining Power, and furthermore in paragraphs 2 and 3 of Article 12 of Geneva Convention III, which applies to the transfer of prisoners of war to another High Contracting Party. The Appeals Chamber recalls that besides the JNA, the TO was one of the two constituent elements of the armed forces of the former Yugoslavia, and they were both subordinated to the Supreme Defence Council. Thus, the military police of the 80 mtbr of the JNA should have satisfied itself of the willingness and ability of the TOs to apply the principle enshrined in Geneva Convention III, before transferring custody of the prisoners of war.
72. Although the duty to protect prisoners of war belongs in the first instance to the Detaining Power, this is not to the exclusion of individual responsibility. The first paragraph of Article 12 of Geneva Convention III places the responsibility for prisoners of war squarely on the Detaining Power; however, it also states that this is “[i]rrespective of the individual responsibilities that may exist”. The ICRC Commentaries clarify that “[a]ny breach of the law is bound to be committed by one or more individuals and it is normally they who must answer for their acts”. The JNA Regulations further explicitly state that “[e]very individual – a member of the military or a civilian – shall be personally accountable for violations of the laws of war if he/she commits a violation or orders one to be committed”. The Prosecution submits that “[t]hus, members of the armed forces ‛acquire’ these international obligations with regard to prisoners of war. There is no further requirement of ‛specific investment’” of authority as argued by Šljivančanin. The Appeals Chamber agrees with this submission.
73. The Appeals Chamber thus finds that Geneva Convention III invests all agents of a Detaining Power into whose custody prisoners of war have come with the obligation to protect them by reason of their position as agents of that Detaining Power. No more specific investment of responsibility in an agent with regard to prisoners of war is necessary. The Appeals Chamber considers that all state agents who find themselves with custody of prisoners of war owe them a duty of protection regardless of whether the investment of responsibility was made through explicit delegation such as through legislative enactment or a superior order, or as a result of the state agent finding himself with de facto custody over prisoners of war such as where a prisoner of war surrenders to that agent.
74. The Appeals Chamber therefore considers that Šljivančanin was under a duty to protect the prisoners of war held at Ovčara and that his responsibility included the obligation not to allow the transfer of custody of the prisoners of a war to anyone without first assuring himself that they would not be harmed. Mrkšić’s order to withdraw the JNA troops did not relieve him of his position as an officer of the JNA. As such, Šljivančanin remained an agent of the Detaining Power and thus continued to be bound by Geneva Convention III not to transfer the prisoners of war to another agent who would not guarantee their safety.
 Krnojelac Appeal Judgement, para. 220. See also Čelebići Appeal Judgement, paras 112-113: “It is indisputable that the Geneva Conventions fall within this category of universal multilateral treaties which reflect rules accepted and recognised by the international community as a whole. The Geneva Conventions enjoy nearly universal participation” (footnote omitted); Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704, 3 May 1993, para. 35: “The part of conventional international humanitarian law which has beyond doubt become part of international customary law is the law applicable in armed conflict as embodied in: the Geneva Conventions of 12 August 1949 for the Protection of War Victims […]”.
 Kunarac et al. Appeal Judgement, para. 68; Čelebići Appeal Judgement, paras 138-139, 147; Tadić Jurisdiction Decision, paras 89, 98. See also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, para. 218: “Article 3 which is common to al1 four Geneva Conventions of 12 August 1949 defines certain rules to be applied in the armed conflicts of a non-international character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court's opinion, reflect what the Court in 1949 called ‘elementary considerations of humanity’”.
 Cf. ICRC Commentaries on Article 3 of Geneva Convention III which makes comparisons between Articles 3 and 13, pp. 39-40.
 Article 13 of Geneva Convention III provides that “[p]risoners of war must at all times be humanely treated”. This principle of humane treatment applies not only to physical integrity but also to mental integrity (see Article 13 of Geneva Convention III, para. 2 and commentary thereof, p. 141: “The concept of humane treatment implies in the first place the absence of any kind of corporal punishment. [...] The protection extends to moral values, such as the moral independence of the prisoner (protection against acts of intimidation) and his honour (protection against insults and public curiosity)). It was enshrined in the same terms in Article 2 of the Convention relative to the Treatment of Prisoners of War (Geneva, 27 July 1929). See also Article 4 of the Hague Regulations (Regulations Respecting the Laws and Customs of War on Land annexed to Hague Convention IV of 18 October 1907). The Hague Regulations undoubtedly form part of customary international law (see Kordić and Čerkez Appeal Judgement, para. 92).
 See Article 5 of Geneva Convention III.
 See Article 46 of Geneva Convention III, which provides that when transferring prisoners of war from one location to another, “[t]he Detaining Power shall take adequate precautions […] to ensure their safety during transfer”.
 See Article 12 of Geneva Convention III, which provides: “Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody”.
 See Trial Judgement, paras 83-84.
 ICRC Commentaries to Geneva Convention III, Article 12, p. 128.
 Exhibit P396, “Regulations on the Application of International Laws of War in the Armed Forces of the SFRY”, Article 20.
 Prosecution Brief in Reply, para. 72.
|Other instruments Geneva Convention: Common Article 3. Geneva Convention III: Article 5; 12; 13; 46.|